U.S.

Department of Labor
Employment Standards Administration
Wage and Hour Division
(November 2007)

Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act
(FLSA)
This fact sheet provides general information concerning the application of the FLSA to employees who receive
tips.

Characteristics

Tipped employees are those who customarily and regularly receive more than $30 a month in tips. Tips actually
received by tipped employees may be counted as wages for purposes of the FLSA, but the employer must pay
not less than $2.13 an hour in direct wages.

Requirements

If an employer elects to use the tip credit provision the employer must:

1) Inform each tipped employee about the tip credit allowance (including amount to be credited) before the
credit is utilized.
2) Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit
allowance are combined.
3) Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips
received, except to the extent the employee participates in a valid tip pooling arrangement.

If an employee's tips combined with the employer's direct wages of at least $2.13 an hour do not equal the
minimum hourly wage of $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and
$7.25 per hour effective July 24, 2009; the employer must make up the difference.

Youth Minimum Wage: The 1996 Amendments to the FLSA allow employers to pay a youth minimum wage of
not less that $4.25 an hour to employees who are under 20 years of age during the first 90 consecutive calendar
days after initial employment by their employer. The law contains certain protections for employees that
prohibit employers from displacing any employee in order to hire someone at the youth minimum wage.

Dual Jobs: When an employee is employed concurrently in both a tipped and a non-tipped occupation, the tip
credit is available only for the hours spent in the tipped occupation. The Act permits an employer to take the tip
credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves
directed toward producing tips, provided such duties are incidental to the regular duties and are generally
assigned to such occupations. Where tipped employees are routinely assigned to maintenance, or where tipped
employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or
maintenance, no tip credit may be taken for the time spent in such duties.

Retention of Tips: The law forbids any arrangement between the employer and the tipped employee whereby
any part of the tip received becomes the property of the employer. A tip is the sole property of the tipped
employee. Where an employer does not strictly observe the tip credit provisions of the Act, no tip credit may be
claimed and the employees are entitled to receive the full cash minimum wage, in addition to retaining tips they
may\should have received.

Service Charges: A compulsory charge for service, for example, 15 percent of the bill, is not a tip. Such charges
are part of the employer's gross receipts. Where service charges are imposed and the employee receives no tips,
the employer must pay the entire minimum wage and overtime required by the Act.

Tip Pooling: The requirement that an employee must retain all tips does not preclude a valid tip pooling or
sharing arrangement among employees who customarily and regularly receive tips, such as waiters, waitresses,
bellhops, counter personnel (who serve customers), busboys/girls and service bartenders. Tipped employees
may not be required to share their tips with employees who have not customarily and regularly participated in
tip pooling arrangements, such as dishwashers, cooks, chefs, and janitors. Only those tips that are in excess of
tips used for the tip credit may be taken for a pool. Tipped employees cannot be required to contribute a greater
percentage of their tips than is customary and reasonable.

Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a
percentage on each sale, then the employer may pay the employee the tip, less that percentage. This charge on
the tip may not reduce the employee's wage below the required minimum wage. The amount due the employee
must be paid no later than the regular pay day and may not be held while the employer is awaiting
reimbursement from the credit card company.

Typical Problems

Minimum Wage Problems: Employee does not qualify as a "tipped employee", tips are not sufficient to make
up difference between employer's direct wage obligation and the minimum wage; employee receives tips only --
so the full minimum wage is owed; illegal deductions for walk-outs, breakages and cash register shortages; and
invalid tip pools.

Overtime Problems: Failure to pay overtime on the full minimum wage; failure to pay overtime on the regular
rate including all service charges, commissions, bonuses and other remuneration.

Where to Obtain Additional Information

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov
and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-
4USWAGE (1-866-487-9243).

This publication is for general information and is not to be considered in the same light as official statements of
position contained in the regulations.

U.S. Department of Labor 1-866-4-USWAGE

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